What can litigators do for the climate emergency? We consulted a group of experts to find out.
Joel Poultney, Senior Research Analyst and Content Writer
18 February 2020
Eyes wide open
“On geological timescales it’s clear this is an emergency,” says Myles Allen, head of Oxford University’s Climate Dynamics group, on BBC’s Radio 4 this morning. Conversations about the climate crisis are now rightfully unavoidable. The UN’s landmark Intergovernmental Panel on Climate Change (IPCC) report from 2018 made it clear that as a global community, we have just 12 years to keep global warming to 1.5°C above pre-industrial levels. Failure to do so will radically alter the ecological and social fabric of our planet. And while it’s important to be wary of hyperbole, alarm bells ought to be ringing.
“...judges are increasingly being asked to deal with arguments and facts related to climate change.”
Thankfully, many have heard the call. Academics and practitioners of law – challenged by citizens, shareholders, and communities no longer content with inertia – are importantly taking up their proverbial arms. While climate change litigation is not a new phenomenon, its recent prominence has, in part, benefitted from increased global attention and a shifting public discourse. In this context, we spoke with the following group of lawyers and law academics to understand the relationship between the law and the climate, and what role, if any, the legal profession can play in mitigating the crisis: Dr. Joana Setzer (research fellow at the Grantham Research Institute on Climate Change and the Environment); Dr. Kim Bouwer (law lecturer at the University of Exeter); Marc Willers QC (of Garden Court Chambers); Mark Clarke and Katherine Daley (both of White & Case).
Broadly speaking, climate change litigation can be grouped into two interdependent streams: cases brought intentionally and explicitly in response to the climate crisis, and then cases which indirectly affect the climate, without climate change necessarily being their primary aim. “Climate litigation is usually thought of as litigation that challenges governments or corporates to improve mitigation responses or compensate for climate harms,” states Dr. Kim Bouwer. “However, I would say climate litigation describes any adjudicative process that either directly seeks to challenge or address, or somehow has an impact on, any aspect of any climate policy, whether or not the substance of the litigation specifically relates to climate change.”
White & Case’s Mark Clarke and Katherine Daley go on to highlight the depth of the term, explaining how it’s “shorthand for a range of different proceedings connected to climate change matters. Although climate change may not always be the central issue in environmental litigation, even when it arrives peripherally, judges are increasingly being asked to deal with arguments and facts related to climate change.”
Marc Willers QC explains that cases encompass either the mitigation of carbon emissions; the challenging of various governmental policy objectives; and planning permissions for any projects, developments and infrastructure. “Then there are things like loss and damage claims,” he adds, “where you have cases with people suffering as a result of actions by the state and big fossil fuel companies.” Such cases, asserts Willers, have evolved over the years: “With the increase and development of the science on attribution, it becomes easier to bring cases against those actors for loss and damages.”
A brave new world?
Climate litigation is nothing new. Clarke and Daley highlight how claimants have incorporated climate-related issues in cases since the end of the 20th century, and that “generally, the claims filed to date do not rely on any new legal concepts. Frequent causes of action include public and private nuisance, negligence, failure to warn and constitutional and administrative law claims.”
“...the increase of scientific research and public awareness has led to an influx of legal claims specifically concerning the environment.”
How have these claims been received? “When I studied back in the 80s, there were very few people concentrating on environmental law with no real understanding of the emergency we were going to face in the coming decades,” says Willers. “That may be the reason why there is a lack of judicial understanding and jurisprudence which is positively geared towards protecting the environment coming out of the courts.” But Clarke and Daley are optimistic of a substantive change in the judiciary on this topic: “The increase of scientific research and public awareness has led to an influx of legal claims specifically concerning the environment.”
Same problem, new solutions
With many years of disappointing outcomes, a new strategy was needed. Dr. Joanna Setzer notes: “The first real wave of cases goes from the 90s to 2015. Those were an attempt to bring climate change to court with different strategies and very limited success. Then a second wave of climate litigation from 2015 saw a different experimentation with a wider range of strategies in an expanded number of countries.”
The emergence of “big, strategic legal tactics” has begun to reshape these former approaches, like those that were brought by “individuals seeking to protect their own livelihoods on a very small scale” or mass tort actions designed to challenge governments or emissions targets. “I think one of the most ambitious cases in terms of experimenting,” Setzer suggests, “is Lliuya v. RWE AG in Germany. It’s a very interesting case brought by a Peruvian farmer against a German electric company that was alleged to have been responsible for the melting of mountain glaciers in his home village.”
“I see how litigation can be an amazing and potentially powerful tool to promote change.”
“In recent years we have also seen more activity within the private sector,” report Clarke and Daley. “This ranges from government claims against private companies that seek mandatory injunctions preventing certain actions of those companies, to shareholders taking action against directors and senior employees for failing to consider climate change-related risks and/or failing to disclose such risks in financial documentation.” As of 2019, an Australian pension fund is being sued by an individual for the fund’s investment in oil companies and failing to disclose the impact of climate change within information on its investments. These kinds of cases are setting exciting new precedents. Bouwer comments: “I think, or maybe hope, that there will be a shift away from a limited view of climate litigation – as mass litigation brought by NGOs – to an understanding of climate change as a social challenge that requires a significant transformation of our social and economic systems.”
Despite the increasing number of climate cases being brought, a debate rumbles on about their effect – especially when the defendants are some of the most powerful and influential fossil fuel companies. “On the one hand I see how litigation can be an amazing and potentially powerful tool to promote change,” ponders Setzer. “But I also think it is not the sole solution. I see litigation as one more tool in the toolbox.”
“Litigation can play a significant role in holding governments to account for decisions, in challenging inaction, in holding actors to account for unreasonable conduct that has caused harm,” says Bouwer. However, “the way our law is designed doesn’t ‘fit’ climate change very well, and as such litigation can only be part of the response to environmental problems like climate change. We also need strong political will, effective regulation and an active civil society that includes NGOs but also people on the streets.”
“Lawyers are waking up to the idea of climate risk and the possibilities for professional liabilities in relation to this.”
Then there’s another issue: how can alterations be successfully made to seemingly immovable infrastructure? “Even if laws can be enforced, there may be many practical obstacles that stand in the way of implementation, such as existing consumer demands,” note Clarke and Daley. They suggest, for example, that the introduction of diesel bans does not eliminate the demand for vehicle access and fuel. “Accordingly,” they find, “the implementation of this legal remedy will require a concerted effort between regulators, pressure groups, manufacturers, companies providing fuel and many other groups. The technological and scientific worlds will undoubtedly be central to the development of creative and ingenious solutions to such issues.”
A long way to go
Looking ahead, Willers anticipates that the worst emitters will be a likely target for legal action: “There will be cases in the future where companies and big fossil fuel players will be hit in their pockets by those who are interested in how much they’re earning by way of profit.” That, he suggests, “might be as quick a way as any in changing the mindset of fossil fuel companies.”
Bouwer, meanwhile, highlights the need for businesses to be climate conscious and the role lawyers will play in drawing this to their clients’ attention: “Lawyers are waking up to the idea of climate risk and the possibilities for professional liabilities in relation to this, particularly in the financial sector. That need may not be driven by any ‘moral’ or ‘environmental’ imperative, but simply by an eye on litigation opportunities arising from poorly managed risk.”
As such, climate litigation will take on many forms in the future, and at the time of writing, there are now over 1,500 cases that have been identified across 35 jurisdictions. “Climate change litigation is undoubtedly on an upward trajectory,” Clarke and Daley inform us. “With growing public pressure and interest, judicial bodies are becoming less hesitant to make significant rulings on these issues. The outcome of such cases is important to every part of society: governments, corporates and individuals. With many governments and corporates publicly expressing their commitments to tackling climate change, it is an area that is bound to see increased litigation for law firms.” Setzer quips: “These problems are good for bringing more work to lawyers.”
“Many climate-related litigations have difficulty in proving causation. Despite climate science developments, it remains difficult to pinpoint the effects of particular emissions and connect them to specific events or damages.”
What we do know is that the climate crisis requires immediate action, and those in the legal world are poised to play an instrumental role. So how can you, student reader, start to prepare yourself for a career in this burgeoning and deeply important area of the law? From an academic standpoint, much seems self-explanatory. “Keep abreast of the issues,” note Clarke and Daley. “It is still very much an evolving area of litigation and legislation. It is also important to understand the key legal concepts involved in this type of litigation. Many climate-related litigations have difficulty in proving causation. Despite climate science developments, it remains difficult to pinpoint the effects of particular emissions and connect them to specific events or damages. This has been a major barrier to the success of actions so any further development on this issue will have significant impacts on future litigations.”
At the same time, aspiring lawyers interested in other areas should also sit up and take note. “Study environmental law!” urges Bouwer. “I actually think a module in climate law should be recommended for students in financial or corporate law. Even if you don’t want to be an ‘environmental lawyer,’ climate change is an economy-wide issue and will become increasingly pervasive as time goes by – and you will need to know about it.”
Willers, meanwhile, draws your attention to the interplay between law practitioners and groups outside the courtroom: “One person I worked with recently said we should be ‘besieging the Citadel,’ and that’s perhaps the way we should be thinking about the climate situation. Because there is a vast number of ways we can use litigation to help tackle climate change—and of course it’s not the be-all and end-all, far from it—but often the cases we bring are as much as anything campaigning tools which local communities can rally behind.” His advice for students interested in the area? “Be prepared to be a campaigning tool and to think imaginatively about the kinds of cases that could be brought.”
“Even if you don’t want to be an ‘environmental lawyer,’ climate change is an economy-wide issue and will become increasingly pervasive as time goes by – and you will need to know about it.”
As a student planning your career, know that the legal industry itself will be altered by climate change in many ways: both public and private law will be affected; traditional oil and gas work will become increasingly redundant as more sustainable energy resources are sought; new legislative structures will continue to emerge – such as the Nansen Initiative – in order to provide legal protection for refugees fleeing inhospitable conditions and disasters caused by the changing climate; and, while it’s unlikely to be amended in the Rome Statute, ecocide continues to be discussed as a means to legally render companies culpable for damage done to ecosystems. By stepping up to the mark and entering this area of law, you can contribute significantly to a multi-level solution to climate change. And while, as Willers jests, you’re “not going to make a fortune from practising environmental law,” what use is a ballooning bank account on a planet pushed to its breaking point?